Fact Sheet - Legal professional privilege

This fact sheet has been prepared for agencies and decision makers to assist them in the practical application of this clause under Clause 5(1) of Schedule 1 to the Government Information (Public Access) Act 2009 (GIPA Act). It is also designed to inform applicants to assist them in understanding the test that agencies should apply when relying on this clause to refuse access to information applied for under the GIPA Act.

Section 14(1) of the GIPA Act provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the information described in Schedule 1.

Clause 5(1) of Schedule 1 - legal professional privilege

Clause 5(1) of Schedule 1 to the GIPA Act states that it is conclusively presumed that there is an overriding public interest against disclosure of information:

that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege.

What is legal professional privilege?

Legal professional privilege protects confidential communications and confidential documents between a lawyer and a client made for the dominant purpose of the lawyer providing legal advice or professional legal services to the client or for use in current or anticipated litigation.

The existence and maintenance of privilege must always be considered in light of all the facts and circumstances that apply to the information and the people involved in that communication.

In order for legal professional privilege to apply, each element of legal professional privilege must be satisfied. The essential elements of legal professional privilege which derive from sections 118 and 119 of the Evidence Act 1995 (NSW) are:

the existence of a client and lawyer relationship;

the confidential nature of the communication or document, and

the communication or document was brought into existence for the dominant purpose of either:

i. enabling the client to obtain, or the lawyer to give legal advice or provide legal services, or
ii. for use in existing or anticipated litigation.

Mere reference to the existence of legal advice is not inconsistent with the maintenance of privilege attaching to that advice.

Where legal advice is provided by an in-house lawyer, it must be shown that the document was brought into existence in the course of the performance of the lawyer’s professional role.

Some factors relevant to the question of whether the author was performing their legal role include:

whether the officer holds a current practicing certificate

whether the subject matter of the advice is such as to engage the personal loyalties, duties and interests of the in-house lawyer

whether the supervision of the legal adviser impacts upon the independence of the relevant advice

the role of the legal area within a department or agency, including whether the legal area provides independent advice and does not alter legal views to meet policy or administrative objectives.

Waiver of privilege

Clause (5)2 of Schedule 1 to the GIPA Act provides that an agency is required to consider whether it would be appropriate for the agency to waive privilege before the agency refuses to provide access to government information on the basis of clause 5.

Legal professional privilege will be waived when the client or their agent deliberately and intentionally discloses the confidential communications.

Sometimes privilege can be waived even if the client did not intend to waive it.

For example Partial disclosure of a privileged document may constitute waiver of the entire document, if the information that was disclosed is not severable from the remainder of the document. Equally if the substance or effect of an advice is disclosed in a manner inconsistent with the maintenance of confidentiality having regard to the purpose of the disclosure, legal professional privilege may be waived for the advice in all related documents or communications in a series of documents.